Conservative judge blasts Bush, Congress for role in Schiavo case

WASHINGTON—The latest rejection of the Terri Schiavo case by a federal court was accompanied by a stinging rebuke of Congress and President Bush from a seemingly unlikely source: Judge Stanley F. Birch Jr., one of the most conservative jurists on the federal bench.

Birch authored opinions upholding Alabama's right to ban the sale of sex toys and Florida's ability to prohibit adoptions by gay couples. Both rulings drew the ire of liberal activists and the elation of traditional and social conservatives.

Yet, in Wednesday's 11th Circuit Court of Appeals decision to deny a rehearing to Schiavo's parents, Birch went out of his way to castigate Bush and congressional Republicans for acting "in a manner demonstrably at odds with our Founding Fathers' blueprint for governance of a free people—our Constitution."

Birch said he couldn't countenance Congress' attempt to "rob" federal courts of the discretion they're given in the Constitution. Noting that it had become popular among "some members of society, including some members of Congress," to denounce "activist judges," or those who substitute their personal opinions for constitutional imperatives, Birch said lawmakers embarked on their own form of unconstitutional activism.

"This is a judge who, through a political or policy lens, falls pretty squarely in the Scalia/Thomas camp," said law professor and constitutional expert David Garrow, referring to the two most conservative Supreme Court justices. "I think it's a sad commentary that there wasn't a voice like his present in the Congress, because he's saying what a Republican constitutional conservative should be saying."

Jay Sekulow, the chief legal counsel for the conservative American Center for Law and Justice, said Birch got it wrong, while two other judges—including one appointed by Bill Clinton—were right to say they'd accept the Schiavo case.

"I think this whole case is redefining ideological positions," said Sekulow, whose organization has been consulting with lawyers for Schiavo's parents. "I would think an originalist view of the Constitution would come out differently than what Birch says." Originalists try to adhere to the precise language and intent of the Constitution.

White House spokeswoman Dana Perino declined to address Birch's decision directly, saying the president is "saddened by this extraordinary case and continues to support all those who stand up to defend life."

Birch's criticisms highlight the legal conundrum that surrounds the Schiavo case and point to the difficulty it continues to present for some Republicans. Congressional leaders may have believed that they were playing to the party's socially conservative wing by taking extraordinary steps to have the federal government intervene. But traditional conservatives have decried their abandonment of the party's adherence to limited government, states' rights and separation of powers.

Additionally, in order for Schiavo's parents to win in federal court, judges would have to embrace a doctrine of constitutional due process that conservatives have decried. Such "substantive" due process, which Justice Antonin Scalia sharply criticized in a recent speech, is part of the threat that will "destroy the Constitution."

"The fact that their best argument would be based on legal thinking that produced cases such as Roe v. Wade and Lawrence v. Texas ought to give them a clue about what they're asking for," said Garrow, referring to cases that legalized abortion and struck down sodomy laws. Garrow said he supported those opinions, but conservatives generally don't because they embrace an expansive view of constitutional rights.

In his opinion, Birch didn't discuss the merits of Schiavo's parents' arguments because he said he felt compelled to address the larger constitutional question of whether Congress had a right to force any reconsideration of the case.

Birch cited precedents at the core of the American government's structure, including the Federalist papers, published to urge ratification of the Constitution, and Marbury v. Madison, the 1803 Supreme Court decision that established the judiciary as the highest authority on the law.

Birch said Congress stepped into territory reserved for the judiciary when it passed the law directing federal courts to hear Schiavo's case without considering its state court history or traditional barriers to federal review.

The law "robs federal courts of judicial doctrines long-established for the conduct of prudential decision-making," Birch wrote. "Congress chose to overstep constitutional boundaries into the province of the judiciary. Such an Act cannot be countenanced."

Judge Gerard Tjoflat, another conservative judge on the 11th Circuit, disagreed with Birch, writing in a dissenting opinion that Congress was only defining the "standard of review" for the federal courts.

Michael Dorf, a Columbia University law professor and constitutional expert, said he's not surprised that Republicans made an apparent exception to limited government in the Schiavo case.

"Republicans are not categorically against opening federal courts where they think that doing so would produce politically conservative results," Dorf said. "It's easier for a judge to stick by abstract principles than for a politician. The judge only has to answer to the limited audience for judicial opinions. The politician has to answer to voters, who don't generally draw those fine distinctions."

In the political realm, he said, "repeated instances of hypocrisy can become consistency."